* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 18 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 99-2329 ERIN SLOANE SMITH, Defendant-Appellant. (D.C. No. CIV-98-904-JC) (D.N.M.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Erin Sloane Smith seeks a certificate of appealabil ity to appeal the district court’s dismissal of her 28 U.S.C. § 2255 petition as untimely. We exercise2

jurisdiction pursuant to 28 U.S.C. § 1291, deny a c ertificate of appealability, and dismiss the appeal. I. Smith pled guilty and was convicted of conspiracy t o possess with intent to distribute more than 100 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. On October 16, 1996, the district court sentenced Smith to 168 months in prison, and the judgment was filed on October 24, 1996. On June 16, 1997, Smith filed a notice of delayed appeal, alleging that her attorney had refused her request to file an appeal after sentencing. This court dismissed Smith’s appeal on October 15, 1997, as un timely. On July 27, 1998, Smith filed her 28 U.S.C. § 2255 habeas petition, alleging that her guilty plea “was coerced due to m itigating circumstances,” she received ineffective assistance of counsel, and the district court committed sentencing errors. Record, Tab 1. On October 26, 1999, the district court adopted the magistrate’s findings and recommendatio n and dismissed Smith’s § 2255 petition as time-barred under the Antiterror ism and Effective Death Penalty Act of 1996 (AEDPA). II. Smith contends she “has been denied one of her mostbasic rights in the judicial process, that being the right to appeal he r conviction and/or sentence.”3

We review the district court’s legal rulings de nov o and its findings of fact under a clearly erroneous standard. United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996). The AEDPA amended 28 U.S.C. § 2255 to allow federal prisoners one year from the date on which the judgment of their convic tion became final to file a motion to vacate, set aside, or correct their sente nce. The judgment of sentencing was entered on October 24, 1996, and Smith had unti l November 4, 1996, to file a direct appeal. Fed. R. App. P. 4(b)(1); see United States v. Burch , 202 F.3d 1274, 2000 WL 121292 (10th Cir. 2000) (holding thatwhen petitioner files a direct appeal, the “judgment of conviction is final after the time for seeking certiorari review has expired”). Smith filed her § 2255 motion on July 27, 1998. Smith argues the one-year limitations period did no t begin to run until this court denied her untimely direct appeal. However, Smith did not pursue her direct appeal within the applicable time limits andher unsuccessful efforts do not toll the statute of limitations. Further, even if the limitations period was tolled and the time between Smith’s filing of her untimelyappeal and this court’s disposition of that appeal was subtracted, Smith’s petition was still filed more than one year after her conviction became final. “ There may be circumstances where the limitations period at least raises seriou s constitutional questions and possibly renders the habeas remedy inadequate and ineffective.” Miller v. Marr ,4

141 F.3d 976, 978 (10th Cir. 1998). Smith argues h er untimely notice of appeal should have been accepted. This issue has already been decided against Smith by this court. She does not present arguments as to w hy she filed her § 2255 out of time. See Miller , 141 F.3d at 978 (noting that defendant “provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims”). The district court did not err i n dismissing Smith’s § 2255 petition as untimely. III. Smith’s application for a certificate of appealabil ity is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge